City of Dallas v. Heather Stewart

IN THE SUPREME COURT OF TEXAS

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No. 09-0257

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City of Dallas,

Petitioner,

v .

Heather Stewart,

Respondent

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Fifth District of

Texas

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Argued February

16, 2010

Justice Guzman , joined by

Justice Wainwright, Justice Green,

and Justice Johnson ,

dissenting.

The upsurge of abandoned buildings caused by the subprime mortgage

debacle and the recent recession is well known, as are the difficulties it has

caused for cities. 1 Abandoned, vandalized, dangerous

buildings constitute a major threat to the safety and vitality of entire

neighborhoods. 2 The Legislature has enacted a

comprehensive statutory scheme enabling cities to address this complex problem.

Central to that scheme, summary nuisance abatement is a crucial, front-line tool

for cities to deal with an otherwise overwhelming crisis. 3

Today, the Court holds that “substantial evidence review of a nuisance

determination resulting in a home’s demolition does not sufficiently protect a

person’s rights under Article I, Section 17 of the Texas Constitution,” and thus

concludes that a party whose real property has been determined a nuisance is

entitled to an absolute right to de novo judicial review of the underlying

nuisance determination made by an administrative board when the person alleges a

taking. By doing so, the Court misses the crux of the constitutional issue here:

do the procedures created by the Legislature for abatement of urban nuisances

violate the due process rights of property owners? Our nuisance precedents

establish that due process does not necessitate a de novo judicial determination

that a condition is a nuisance if the Legislature has both (1) properly declared

that the condition in question is a nuisance and provided for its summary

abatement, and (2) specified a different standard of review of such an abatement . Here, the Legislature has done both. Moreover,

the Court’s justifications for requiring de novo review are founded on

misinterpretations of the precedents of both this Court and the United States

Supreme Court. Accordingly, I would reverse the court of appeals’ judgment, and

give preclusive effect over the property owner’s takings claim to the

administrative board’s finding that the house was a nuisance, as confirmed on

substantial evidence review by the trial court. I therefore respectfully

dissent.

I. Proper Abatement of a Public Nuisance Does Not Constitute a

Taking

A. Due Process

Although the Court rushes to apply the Takings Clause, the correct

inquiry is whether there was proper abatement of a public nuisance, consonant

with due process. As the Supreme Court has explained, proper abatement of a

public nuisance does not constitute a taking. See Lucas v. S.C. Coastal

Council , 505 U.S. 1003, 1029 (1992); Samuels v. McCurdy , 267 U.S.

188, 196 (1925) (“The exercise of the police power by the destruction of

property which is itself a public nuisance . . . is very

different from taking property for public use, or from depriving a person of his

property without due process of law. In the one case, a nuisance only is abated;

in the other, unoffending property is taken away from an innocent owner.”). Due

process distinguishes proper abatement of a nuisance from the improper

deprivation of property. See Samuels , 267 U.S. at 196 ; Crossman v.

City of Galveston , 247 S.W. 810, 813 (Tex. 1923) (invalidating on due

process grounds an ordinance that made city commissioners’ nuisance finding

final); Stockwell v. State , 221 S.W.

932, 935 (Tex. 1920) (concluding that judicial review of administrative

determination of what constitutes a nuisance is required because “nothing less

would amount to due process of law, without which the Bill of Rights declares no

citizen shall be deprived of his property”); Bielecki v. City of Port Arthur , 12 S.W.2d

976, 978 (Tex. Comm’n App. 1929, judgm’t adopted) (reasoning, on review of an ordinance

declaring that all dance halls located within 150 feet of residences were

nuisances, that “denial of the right of a citizen to so use his property is a

deprivation of the property itself, hence falls within the protection afforded

by the due process clauses of both State and Federal Constitutions”).

Due process is a flexible concept, and its precise requirements depend on

the particular situation in question. 4 Gilbert v. Homar , 520 U.S. 924, 930 (1997). In weighing a

due process question, we must determine whether the claimant has a property

interest requiring protection, and, if so, what process is due. Univ. of Tex.

Med. Sch. at Houston v. Than , 901 S.W.2d 926, 929

(Tex. 1995). Here, Heather Stewart had a property interest requiring

protection—the demolished house. The only remaining issue under these facts is

what process did she have a right to—if the procedure

utilized to find that Stewart’s house was a nuisance afforded her due process,

then as a matter of law there cannot have been a taking. See Samuels , 267

U.S. at 196 . In this case, the only part of the process afforded to Stewart that

she challenges is the Legislature’s determination that review of the Dallas

Urban Rehabilitation Standards Board’s (the Board) nuisance finding is governed

by the substantial evidence rule. See Tex. Loc. Gov’t Code § 214.0012(f).

B. The Legislature’s Authority to Abate

Nuisances

For over a century, this Court has recognized the Legislature’s authority

to determine that a condition is a nuisance, and to provide for its summary

abatement. As far back as 1876, we explained that the Legislature could declare

that wooden buildings are nuisances under certain circumstances, and could so

authorize their abatement. See Pye v. Peterson ,

45 Tex. 312 , 313–14 (1876) (holding that a city could not treat wooden buildings

as nuisances absent a specific grant of such authority from the Legislature).

This understanding is consistently echoed in our subsequent decisions. See Crossman , 247 S.W. at 812 ; Stockwell , 221 S.W. at 934 (“The State, in the exercise

of its public power, may denominate certain things to be public nuisances, and

because of their having that character provide for their summary

abatement.”).

Consequently, we have long recognized that the Legislature, pursuant to

its authority to declare and abate nuisances, can confer to agencies or

municipalities (by statute or grant of authority, as in a municipal charter) the

ability to abate a specified nuisance, as defined by the legislative grant.

See Crossman , 247 S.W. at 812 ; Pye , 45 Tex. at 314 (noting

that the Legislature has the power to authorize municipalities to prohibit

wooden buildings as nuisances). There are, however, limits to

the Legislature’s authority.

First, the Legislature cannot declare something a nuisance that is not so

in fact. City of Houston v. Lurie , 224 S.W.2d 871, 874 (Tex. 1949)

(“‘This power is limited to declaring only those things to be such nuisances

which are so in fact, since even the State may not denounce that as a

nuisance which is not in fact. ’” ( quoting

Crossman , 247 S.W. at 814 )); Crossman , 247 S.W. at 812 (“Not even

the Legislature can declare that a nuisance which is not so in fact.”). A

“nuisance in fact” is a condition that “endangers the public health, public

safety, public welfare, or offends the public morals.” State v. Spartan’s Indus., Inc. , 447 S.W.2d 407, 413

(Tex. 1969). It is an otherwise unoffending condition that becomes a

nuisance “by reason of its circumstances or surroundings.” 54

Tex. Jur. 3d Nuisances § 5

(2010). In other words, the Legislature may not declare a

condition to be a nuisance that, by reason of its circumstances, does not

endanger public health, safety, welfare, or morals.

Second, the Legislature cannot delegate an open-ended authority to define

nuisances to agencies or municipalities; rather, in authorizing abatement, the

Legislature itself must define the nuisance in question. See City of Texarkana v. Reagan , 247 S.W. 816, 817 (Tex.

1923); Stockwell , 221 S.W. at

934 . That grant is further subject to a due process requirement of

judicial appeal when an agency or municipality acts under such legislative

authorization. See Crossman , 247 S.W. at 813 ; Stockwell , 221 S.W. at 935 ; see also Brazosport Sav . & Loan Ass’n v. Am. Sav . & Loan Ass’n , 342 S.W.2d 747 ,

750–51 (Tex. 1961).

The Court concludes that only a court is competent to ultimately

determine whether a building is a nuisance, and that any such determination by

an agency is always subject to de novo review, despite a legislative

determination that the substantial evidence rule should apply. Though I agree

with the Court that a nuisance determination is generally “a justiciable question,” Crossman , 247 S.W. at 813 , our

precedents do not require de novo judicial determination in every case of this

nature in order to satisfy due process. A survey of our precedents in this area

instead demonstrates that de novo review is not required if the

Legislature has both (1) properly defined the nuisance and authorized its

abatement, and (2) provided for a different standard of review of such an abatement .

In Stockwell , the commissioner of

agriculture did not merely determine that the particular hedge in question was a

nuisance; instead, he determined that the type of citrus disease

infecting the region was a nuisance under the general, catch-all provision of

the statute in question. See Stockwell , 221

S.W. at 934 . In other words, the commissioner effectively set the boundaries of

his own authority by defining for himself what constituted a nuisance. See

id. We held that Stockwell had a right to a

judicial determination of whether citrus canker was a nuisance because the

Legislature had not defined it as one, not because that right exists always and

in every circumstance. 5 See id. at 935 .

Similar issues confronted this Court in Crossman . The principal

due process defect in that case was that the municipality lacked authorization

from the Legislature to abate the type of nuisance in question. See

Crossman , 247 S.W. at 811–12. Specifically, the Legislature, through the

city’s charter, had defined and authorized the abatement of wooden buildings

constituting a fire hazard, but had not authorized the abatement of buildings

that were merely dilapidated. Id. Accordingly, we held that a city

ordinance, purporting to authorize the abatement of dilapidated buildings, was

invalid for exceeding the authority given to the city by the Legislature. Id. at 812 .

In Reagan , we invalidated another city ordinance, holding that

“this ordinance, in so far as it makes final the orders of the city council

declaring the building a nuisance . . . is void.” Reagan ,

247 S.W. at 817 . Once again, the municipality in question lacked proper

legislative authorization defining the nuisance in question. See id.

at 816 (noting that the city council was

purportedly “authorized by its charter to define and abate nuisances,”

and questioning the validity of the charter accordingly) (emphasis added).

Finally, in Lurie , we twice recognized the Legislature’s authority

to declare a condition to be a nuisance. Lurie , 224 S.W.2d at 875 (noting

that judicial determination that a condition is a nuisance is required unless it

is “ property . . . within the class

designated and condemned by statute . . . as a nuisance”);

id. at 877 (“ [U] nless property is of the

class condemned by statute . . . as a nuisance, the

question whether it is in fact a nuisance is for judicial determination.”)

( emphasis added). We also construed—without any doubts

as to its validity—the specific statute the Legislature had enacted pursuant to

that power, authorizing the abatement of defined nuisances: “dangerous or

dilapidated buildings or buildings [constituting a] fire hazard.” Id. at 874 . We observed: “‘The State, in the exercise

of its public power, may denominate certain things to be public nuisances, and

because of their having that character provide for their summary abatement.’”

Id. (quoting Crossman , 247 S.W. at

814 ).

Thus, although Lurie goes on to state there is a right to judicial

determination of whether a property is a nuisance, that right only arises when

the Legislature or common law has not already defined the class of things in

question as a nuisance. Id. at 875, 877 .

Of course, where the Legislature has made such a determination, due process

still guarantees a qualified judicial review, but does not require that the

review be de novo. Cf. City of Houston v.

Blackbird , 394 S.W.2d 159 , 160–61 (Tex. 1965). Nor did Lurie

announce any general right to de novo appeal. Instead, it simply declined

the city’s invitation in that case to limit appeal to substantial evidence

review without guidance from the Legislature, based in part on the

importance of the rights in question, but equally on the lack of legislative

authorization. See Lurie , 224 S.W.2d at 875–76 .

Therefore, under Lurie , due process does not require that the judicial

review be de novo, if the Legislature, in its grant of authority to abate

a defined nuisance, has provided for a lesser standard of review. See id.

at 876 (declining to apply substantial evidence

review because no statute authorized doing so).

Here, the Legislature has authorized cities to abate a particular

nuisance, and has specifically defined it as:

[A]

building that is: (1) dilapidated, substandard, or unfit for human habitation

and a hazard to the public health, safety, and welfare; (2) regardless of its

structural condition, unoccupied by its owners, lessees, or other invitees and

is unsecured from unauthorized entry to the extent that it could be entered or

used by vagrants or other uninvited persons as a place of haborage or could be entered or used by children; or (3)

boarded up, fenced, or otherwise secured in any manner if (a) the building

constitutes a danger to the public even though secured from entry; or (b) the

means used to secure the building are inadequate to prevent unauthorized entry

or use of the building in the manner described in Subdivision (2).

Tex. Loc. Gov’t Code

§ 214.001(a )( 1)–(3). This definition of

what constitutes a nuisance is specific, and constitutes a nuisance in fact.

See Spartan’s Indus. , 447 S.W.2d at 413

(observing that a nuisance in fact is a condition that “endangers the public

health, public safety, public welfare, or offends the public morals”).

Thus, unlike the statute in Stockwell , 6 or the charter in Reagan , 7 the grant in question here is

circumscribed to specific conditions that constitute a nuisance in fact, and the

municipality or agency is not allowed to define the nuisance. Further, the

authorization specifies that judicial review is limited by the substantial

evidence rule, Tex. Loc. Gov’t Code

§ 214.0012(f), which stands in stark contrast to the situation in

Lurie , where the statute was silent as to the standard of review, see

Lurie , 224 S.W.2d at 874, 876 .

As Justice Johnson notes in his dissent, the Court effectively overturns

the statutory system created by the Legislature to facilitate nuisance

abatement. This is especially troubling because the Legislature appears to have

made every reasonable effort to draft these statutes in accordance with the

relevant standards pronounced by Texas courts, including other due process

requirements not at issue here. In particular, the statutes provide for: (1)

notice and hearing, compare Tex.

Loc. Gov’t Code § 214.001(b )( 2)–(3),

with Perry v. Del Rio , 67 S.W.3d 85, 92 (Tex. 2001), (2) a chance to

remedy the nuisance, compare Tex.

Loc. Gov’t Code § 214.001(d), with Crossman , 247 S.W.

at 812 , (3) notice to mortgagees and lienholders ,

compare Tex. Loc. Gov’t

Code § 214.001(h), with State Bank of Omaha v. Means , 746

S.W.2d 269, 270 (Tex. App.—Texarkana 1988, writ denied), (4) a right to judicial

appeal, compare Tex. Loc. Gov’t

Code § 214.0012, with Blackbird , 394 S.W.2d at 161 ;

Crossman , 247 S.W. at 813 ; Stockwell , 221

S.W. at 934–35, and (5) a clear definition of what constitutes a nuisance in

this context, compare Tex. Loc.

Gov’t Code § 214.001(a )( 1)–(3), with

Stockwell , 221 S.W. at 934–95.

In addition, there is no need for the novel course the Court embarks on

today. Although there are important substantive rights behind the

procedural issue in this case—i.e., rights under the Takings Clause—creating a

new procedural entitlement to protect such rights is unnecessary. The

right to compensation for takings of private property is a vital one, as

evidenced by its enshrinement in both the Federal and Texas Constitutions.

Without reservation, I share the Court’s laudable concern with preventing

uncompensated takings. As such, I note that even under substantial evidence

review, it is still possible to prove that an agency’s or municipality’s action

is illegal, see Brazosport Sav . & Loan Ass’n , 342 S.W.2d at 752 , which might well be relevant

if an agency or municipality acts outside of its authority, as by using the

nuisance procedures to actually take title to a piece of real property, or by

violating the procedures in Local Government Code chapters 54 and 214, or other

statutes. Accordingly, our system already provides adequate safeguards for

property owners, without thwarting the intent of the Legislature as the Court

does.

In summary, the Legislature has both (1) validly defined the nuisance in

question and authorized its abatement,

Tex. Loc. Gov’t Code § 214.001, and (2) specified what standard of review

applies, id. § 214.0012(f). As a result, I would conclude that the urban

nuisance statutes at issue comport with our nuisance precedents, and therefore

afforded Stewart due process, and thus should have precluded Stewart’s takings

claim. 8

II. The Court’s Reasons for Disregarding our

Nuisance Jurisprudence Fall Short

The Court circumvents our due process nuisance jurisprudence

discussed above in favor of a takings inquiry. Its justifications for doing so

are (1) a misreading of the extent of our holding in Steele v. City of

Houston , and (2) an entirely novel application of the constitutional

fact doctrine. Both of these justifications fail.

A. Misplaced Reliance on Steele

The Court argues that the Stockwell – Lurie line of cases described above

is no longer valid in light of Steele v. City of Houston , 603 S.W.2d 786

(Tex. 1980) . This exaggerates the scope of Steele . The Court

cogently describes Steele ’s actual effect, which was to make clear that

the Takings Clause is self-executing, thereby reversing the prior assumption

that the State enjoyed sovereign immunity from takings claims. But the Court

then extrapolates that Steele also precluded the Legislature from

summarily abating nuisances in fact. The problem with that assumption is that

Steele in no way modified or curtailed the State’s police power; instead,

it merely removed the shield of sovereign immunity from the exercise of that

power. See id. at 791 (“The Constitution itself

is the authorization for compensation for the destruction of property and is

a waiver of governmental immunity for the

taking . . . of property for public use.”) ( emphasis added).

In fact, Steele says very little about the question in this

case—in Steele , there was no due process at all, because the Houston

police summarily set fire to the plaintiff’s home in an attempt to flush out

fugitives, id. at 789 , nor was the city claiming

to abate a nuisance, see generally id. Steele simply stands for the

proposition that the Takings Clause is self-executing, and that sovereign

immunity is waived for takings claims. See id. at 789 . An important point, to be sure, but one that is not

relevant where, as here, the Takings Clause is inapplicable because there was a

proper nuisance abatement, rather than a taking. See Samuels , 267 U.S. at

196 .

B. The Constitutional Fact Doctrine

The Court further reaches its conclusion by a novel adoption and

application of the constitutional fact doctrine. But there are two important

reasons that I would decline to import that doctrine from its proper, federal

context.

First, the doctrine is generally applied in the context of the First and

Fourth Amendments, not to nuisance or takings questions, as the Court itself

admits. __ S.W.3d __; see, e.g. , Ornelas v. United States , 517 U.S. 690, 697

(1996); Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485

(1984). The common thread in those cases is that the “fact” in question

is of highly subjective intent—such as whether an alleged defamer acted with

actual malice, or whether the police had probable cause. See Bose Corp. ,

466 U.S. at 515 (Rehnquist, J., dissenting) (noting that the constitutional fact

issue in a First Amendment case is “no more than findings about the mens rea of an

author”). Also, such cases involve the development and application of

complicated, constitutional legal standards. See Ornelas , 517 U.S. at 697 (explaining that “the

legal rules for probable cause and reasonable suspicion acquire content only

through application,” thus requiring independent review “if appellate courts are

to maintain control of, and to clarify, the legal principles”). By contrast,

whether a building is so dilapidated as to constitute a danger to health and

safety is not a legal rule that “acquires content” only through independent

judicial review. Rather, it is a rule that derives its content from the specific

statute in question. See Tex.

Loc. Gov’t Code § 214.001(a )( 1)–(3).

Indeed, a major concern of our nuisance precedents, such as Stockwell , was to ensure that cities and

agencies only act under a specific statutory definition, limited to nuisances in

fact, thus rendering inapplicable here the concerns that motivated the Supreme

Court to “reinvigorate” the constitutional fact doctrine.

Second, the Court’s reason for applying the doctrine is disquieting, both

for its unsound basis, and for the breadth of its potential application in

future cases. The Court applies the doctrine merely because “[t] akings claims also typically involve mixed questions of fact

and law.” __ S.W.3d __. But mixed questions of fact and

law abound in our legal system. See, e.g. , Intercont’l Grp . P’ship v. KB Home Lone Star L.P. , 295 S.W.3d 650, 666

(Tex. 2009) (Brister, J., dissenting) (“Whether a party prevailed in litigation

is a mixed question of law and fact.”); Richey v. Brookshire Grocery

Co. , 952 S.W.2d 515, 518 (Tex. 1997) (explaining that probable cause is “a

mixed question of law and fact” in malicious prosecution cases when the parties

dispute the underlying facts). Under the Court’s reasoning, it appears that

every mixed question of fact and law that is even alleged to touch on a

constitutional right is now a “question of constitutional fact.” Further, it is

unclear how the Court’s decision can be squared with our rule that “[w]e review

a trial court’s decision on a mixed question of law and fact for an abuse of

discretion.” 9 State v. $217,590.00 in U.S.

Currency , 18 S.W.3d 631, 633 (Tex. 2000). What is particularly worrisome is

that, while the Supreme Court takes pains to cabin both its reasons for applying

the doctrine and the doctrine’s scope, this Court today provides no such

limiting guidance. 1 0 See, e.g. , Bose Corp. , 466

U.S. at 510–11; see also Henry P. Monaghan, Constitutional Fact

Review , 85 Colum. L. Rev.

229 , 272–73 (1985). 1 1 Because of the differences

between regulatory and conventional takings cases, it is generally inappropriate

to treat regulatory takings cases as controlling precedent for conventional

takings. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency , 535 U.S. 302, 323 (2002);

Lowenberg v. City of Dallas , 168 S.W.3d 800 ,

801–02 (Tex. 2005) (per curiam ). The Court errs

when it relies on such cases here.

III. Conclusion

The Court’s decision opens the door to a host of takings challenges to

agency determinations of every sort, and in every such challenge a right to

trial de novo will be claimed. Judges at every level of our court system are

invited by today’s decision to substitute their own factual determinations for

that of an agency or even a lower court. The consequences of the Court’s

decision will not be limited to the courtroom. As discussed above, cities are

faced with complex challenges posed by a crisis level of abandoned and dangerous

buildings, and one of the most important weapons provided by the Legislature to

combat this problem is summary nuisance abatement. It is therefore unsurprising

that the Attorney General and almost a dozen cities have rallied in support of

the statutes by appearing as amici curiae. 1 2

Because the Legislature has both (1) validly defined the nuisance in

question and authorized its abatement, Tex. Loc. Gov’t Code § 214.001,

and (2) specified what standard of review applies, id.

§ 214.0012(f), due process does not require de novo review under our

precedents. The Board’s finding, pursuant to that authority, as affirmed by the

trial court on substantial evidence review, should have precluded Stewart’s

takings claim. Accordingly, I would reverse the court of appeals and render

judgment that Stewart take nothing.

____________________________________

Eva M. Guzman

Justice

OPINION DELIVERED: July 1, 2011

1

See, e.g. , Kristin M. Pinkston, In the Weeds: Homeowners

Falling Behind on Their Mortgages, Lenders Playing the Foreclosure Game, and

Cities Left Paying the Price , 34 S.

Ill. U. L.J. 621 , 627–33 (2010).

2

Melissa C. King, Recouping Costs for Repairing

“Broken Windows”: The Use of Public Nuisance by Cities to Hold Banks Liable for

the Costs of Mass Foreclosures , 45 Tort Trial & Ins. Prac. L.J. 97 ,

98–101 (2009); see generally James Q. Wilson & George L. Kelling , Broken Windows , Atlantic Monthly , Mar. 1982, at

29.

3

See, e.g. , King, supra note 2, at 99; Joseph Schilling,

Code Enforcement and Community Stabilization: The

Forgotten First Responders to Vacant and Foreclosed Homes , 2 Alb. Gov’t L. Rev. 101, 129–30 (2009).

4

The Court asserts that I present no “logical

reason” for treating this nuisance case differently from an eminent domain case.

__ S.W.3d __ n. 21. To the contrary, the distinction is

not only logical, it is followed by the Supreme Court.

See Samuels , 267 U.S. at 196 . The exercise of eminent domain is not the

same thing as nuisance abatement. Compare generally 54 Tex. Jur. 3d Nuisances (2010),

with 32 Tex. Jur. 3d Eminent Domain

(2008).

5

The Stockwell

opinion clearly distinguished between (1) the commissioner’s

determination that citrus canker was a nuisance generally, and (2) the

particular finding that Stockwell’s hedge should be

destroyed as a result. See Stockwell , 221 S.W.

at 935 (“Viewing the powers given the Commissioner by this statute and his

attempted exercise of them here, the inquiry naturally arises as to what are the

rights of the defendant if the Commissioner was mistaken in his judgment that

citrus canker was a contagious plant disease, destructive of citrus fruits,

or as to its being necessary to destroy . . . all of the trees in the

defendant’s hedge.”) ( emphasis added).

6

The Court inappropriately reasons that the

statutes in Stockwell and in this case are

equivalently broad, see __ ­­S.W.3d __, but they are not. The

relevant statute in Stockwell was a general,

catch-all provision: “‘ or other injurious insect pests or contagious diseases

of citrus fruits .’” Stockwell , 221 S.W. at

934 (quoting former Tex. Civ.

Stat. art. 4459). By contrast, as discussed above, the statute here (1)

specifically defines the nuisance, (2) is limited by its terms to nuisances in

fact, and (3) contains no catch-all provision such as the one in Stockwell . See Tex. Loc. Gov’t Code

§ 214.001(a )( 1)–(3). Thus, unlike the

statute in Stockwell , the statute here would

not permit the Board to determine that a building is a “nuisance” when that

building is not a nuisance in fact, nor does the statute purport to give the

Board authority to determine what kind of condition is a

nuisance.

7

The Court’s comparison of the charter in

Reagan and the instant statute also fails. The charter in Reagan

was not limited to nuisances in fact because any dilapidated building

could purportedly be demolished pursuant to the charter, and the Reagan

Court accordingly suggested that the charter was invalid on this point because

not even the Legislature can declare something a nuisance that is not so in

fact. See Reagan , 247 S.W. at 817 ; Stockwell , 221 S.W. at 934 . But here, section 214.001

is limited to conditions that are nuisances in

fact.

The Court attempts to

explain away this distinction by invoking the last antecedent rule to

misconstrue section 214.001 as allowing demolition of homes for merely being

“dilapidated” or “substandard,” and reasons that the definition is thus not

limited to nuisances in fact. __ S.W.3d __ n.14.

However, that canon of construction is “‘neither controlling nor inflexible.’”

Spradlin v. Jim Walter Homes, Inc. , 34

S.W.3d 578, 580 (Tex. 2000) (quoting City of Corsicana v. Willmann , 216 S.W.2d 175, 176 (Tex. 1949)). Moreover,

the Legislature is presumed to know existing law when it enacts a statute,

Acker v. Tex. Water Comm’n , 790 S.W.2d 299, 301

(Tex. 1990), and when the Legislature enacted section 214.001 in its current

form, it was already established that being dilapidated alone does not make a

building a nuisance in fact, Crossman , 247 S.W. at 812 . Thus, the Court,

by construing the statute to authorize abatement of buildings merely for being

substandard or dilapidated, imputes to the Legislature an intent it is presumed

not to have. When read fairly and as a whole, Local Government Code section

214.001 displays a clear intent by the Legislature to only authorize abatement

of nuisances in fact, that is, conditions that are actually dangerous to public

health, safety, and welfare.

8

The Court asserts that the general rule of de novo

determination or review of nuisance findings is “unlikely ever to apply again”

under my approach. __ S.W.3d __ n.12. But there are

many types of nuisance beyond the narrow scope of the Legislature’s

authorization of abatement of certain urban nuisances at issue here. For

example, there are such traditional nuisance actions as abatement of extremely

loud noises, see, e.g. , Estancias Dallas Corp. v. Schultz , 500

S.W.2d 217, 218 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e .), or smells from a

cattle feed lot, see, e.g. , Meat Producers, Inc. v. McFarland , 476

S.W.2d 406, 409 (Tex. Civ. App.—Dallas 1972, writ ref’d n.r.e .), neither of which

fall within the definition of urban nuisance found in section 214.001 of the

Local Government Code. Such suits are real and recurring, and will continue to

be governed by the general rule—that whether the condition is a nuisance is a

judicial question. This is because Stockwell

and its progeny make clear that the Legislature must specifically define the

nuisance in order to provide for its summary abatement. See Stockwell , 221 S.W. at 934 . The Legislature has

done so here, and it is precisely because the definition is specific that

the statutory scheme does not cover vast areas of nuisance law—leaving the

general rule intact in most instances.

9

Although the Court asserts that its holding is

limited to “review of agency decisions of substantive constitutional rights,”

and thus “does no violence” to the general rule, __ S.W.3d __ n.25, that

assertion alone does not suffice to cabin the Court’s holding, nor does it

explicate the relationship between today’s opinion and the general rule. The

cases cited by the Court on this point, see id. , are disparate examples

of heightened review in various contexts, and generally do not address the

proper framework for review of mixed questions of law and fact in light of the

Court’s opinion.

10 As a

particularly relevant example, the Court’s decision today is contrary to

Crowell v. Benson , 285 U.S. 22 (1932). In that case, the Supreme Court

limited the scope of the closely related jurisdictional fact doctrine by

noting:

And where administrative bodies have been appropriately

created to meet the exigencies of certain classes of cases and their action is

of a judicial character, the question of the conclusiveness of their

administrative findings of fact generally arises where the facts are clearly not

jurisdictional and the scope of review as to such facts has been determined by

the applicable legislation.

Id. at

58. Crowell thus confined its

holding to specifically exclude cases just like this one, where the Legislature

has provided for administrative bodies to make quasi-judicial determinations as

to nonjurisdictional and nonconstitutional facts, and has specified the appropriate

scope of review: that of substantial evidence.

The limitation found in

Crowell is germane here because, although the Supreme Court was

addressing the jurisdictional fact doctrine, that doctrine is an English

antecedent of the constitutional fact doctrine, Henry P. Monaghan,

Constitutional Fact Review , 85 Colum. L. Rev. 229 , 249 (1985), and by

applying the jurisdictional fact doctrine in the American, constitutional

context, the Supreme Court “both confirmed and generalized the constitutional

fact doctrine in strong terms,” id. at 253 .

“While conceding that ordinary facts could be established in the

administrative process , the Court held that constitutional facts must be

found by the courts.” Id. (emphasis added).

11 It is further

worth noting that as part of its justification for ignoring the long-established

distinction between nuisance abatement and takings, and for invoking the

constitutional fact doctrine, the Court relies on regulatory takings

cases such as Mayhew v. Town of Sunnyvale , 964 S.W.2d 922 (Tex. 1998)

and City of College Station v. Turtle Rock Corp. , 680 S.W.2d 802

(Tex. 1984). However, the Court fails to properly distinguish between regulatory

and conventional takings. Although this is not a takings case, if it were it

would be a conventional taking, not a regulatory taking; Stewart’s property was

destroyed outright, rather than having its value marginally impaired by a

regulation. See Sheffield Dev. Co. v. City of Glenn

Heights , 140 S.W.3d 660, 672 (Tex. 2004).

12 See

Brief of the State of Texas as Amicus

Curiae, City of Dallas v. Stewart, No. 09-0257 (Tex. Feb. 3, 2010); Brief of

Amici Curiae City of San Antonio, Texas, City of

Houston, Texas, In Support of Petitioner City of Dallas, Stewart , No.

09-0257 (Tex. Sep. 17, 2009); Brief of Amici Curiae

the Cities of Aledo, Granbury, Haltom City, Kennedale, Lake Worth, North

Richland Hills, River Oaks, Saginaw and Southlake, Texas, Stewart , No.

09-0257 (Tex. May 11, 2009).